LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES
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ties to advance women’s rights. But judges can reinforce the status quo or, as in Echaria, reverse earlier gains. To reduce the potential for discrimination, legislators need to craft legislation in harmony with constitutional principles of gender equality or nondiscrimination. In the areas of family law and inheritance, women’s rights to marital and inheritance property under statute should be unequivocally equal to those of men.
Customary Law Customary law forms part of the legal framework in almost every Sub-Saharan country, as noted in chapter 2. A study of Sierra Leone suggests that up to 85 percent of the population used customary law as part of the formal and informal legal system (Kane and others 2004). Customary law is generally not codified (some have argued that this is one of the features that has allowed it to evolve). But there are exceptions: the 1931 Customary Code of Dahomey in Benin, compiled by French authorities in colonial times, was in force until the new Family Code of 2004 effectively repealed many of its discriminatory provisions (UN 2005b). Some states in South Africa—such as KwaZulu Natal as the Gumede case illustrates—and Tanzania have also codified provisions of customary law. Customary tribunals are normally based in or near villages. They are therefore more accessible than the formal statutory courts, which are usually in urban centers. In some countries, such as Cameroon, they are legally recognized by the state and part of the formal hierarchy of courts. Cameroon has a mixed legal system, comprising a civil law system in the francophone part of the country and a common law system in the anglophone part. Customary courts operate in both regions. The Customary Courts Ordinance establishes customary courts in the anglophone region. In the francophone region, Article 7(1) and 8(1) of the Decree of 1969 and Article 3 of the Law of 1979 sets out the composition of traditional courts to comprise a presiding officer; a civil servant or local dignitary, such as a traditional chief with reasonable knowledge of customary law; and assessors.14 Assessors are elders who have lived for a long time in the area covered by the jurisdiction of the court and who have been chosen by the Ministry of Justice as people believed to have both moral integrity and in-depth knowledge of the customary law they are called on to represent. All parties must accept the competence of the traditional court for it to have jurisdiction. In Côte d’Ivoire, village tribunals play a quasi-formal role. The constitution provides for the office of a grand mediator, who decides disputes that cannot be resolved by traditional means (UN 2007). In Madagascar, the state recognizes customary tribunals, whose decisions can be appealed in the formal court system. These tribunals can adjudicate local village disputes relating to land use, for example. They have been co-opted by